1 TORT REFORM 1999: A BUILDING WITHOUT A FOUNDATION ROBERT S. PECK* RICHARD MARSHALL** KENNETH D. KRANZ*** I. INTRODUCTION II. THE JOURNEY TO FLORIDA TORT REFORM III. SIGNIFICANT ISSUES IN HOUSE BILL A. Joint and Several Liability B. Punitive Damages C. Vicarious Liability of Motor Vehicle Owners D. Product Liability Statute of Repose IV. CONSTITUTIONAL RIGHTS AT STAKE V. THE TORT TAX A. Beacon Hill Institute Study B. National Bureau for Economic Research VI. THE STRENGTH OF THE FLORIDA ECONOMY VII. THE DETERRENT EFFECT VIII. CONCLUSION IX. APPENDIX I. INTRODUCTION For the better part of thirty years, corporate and other interests bent on avoiding responsibility for their misdeeds have led a battle to reform the civil justice system in a manner that tilts the legal playing field substantially and shamelessly in their favor. Acting under the umbrellas of various citizens groups, such as the American Tort Reform Association, the Civil Justice League, and Citizens Against Lawsuit Abuse, these business interests have sought to scale back the rights of American consumers by heightening negligence standards, abolishing centuries-old legal doctrines, capping damage awards, and instituting other reforms that effectively deny the American public access to the courts. * Robert S. Peck is Senior Director for Legal Affairs and Policy Research at the Association of Trial Lawyers of America (ATLA), Washington, D.C., and an adjunct professor at Washington College of Law, American University, Washington, D.C. B.A., George Washington University, Washington, D.C., 1975; J.D., Cleveland State University, Cleveland, Ohio/New York University, New York, New York, 1978; LL.M., Yale Law School, New Haven, Connecticut, ** Richard Marshall is Research Analyst for ATLA, Washington, D.C. B.A., University of Delaware, Newark, Delaware, 1989; A.M., University of Illinois, Urbana, Illinois, 1992; Ph.D. (Political Science), University of Illinois, Urbana, Illinois, *** Kenneth D. Kranz is a sole practitioner, Tallahassee, Florida and has served as a lobbyist and Special Legislative Counsel for the Academy of Florida Trial Lawyers, Tallahassee, Florida, since B.S., Florida State University, Tallahassee, Florida, 1970; J.D., Florida State University, Tallahassee, Florida,
2 398 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 Using their political muscle and a nonstop propaganda machine to create a false impression about runaway juries and to demonize lawyers who work for ordinary people, they have manufactured myths and anecdotes about supposed cases with the singular purpose of furthering their political agenda by enraging the public over a civil justice system supposedly gone awry. The tales they tell, though, have little relationship to the facts. Two scholars from the American Bar Foundation found: Underlying this promise for legal reform are the familiar refrains of a litigation explosion, a lawsuit crisis, a liability crisis, an insurance crisis, skyrocketing jury awards, unscrupulous attorneys, and on, and on. This legal system run amok is blamed for everything from the unavailability of essential health care and medicines, the loss of business competitiveness in the world economy and the concomitant effects on economic well-being and jobs, to the closing of public parks and the demise of high school football. These costs and others are presented as a justification for immediate, fundamental reform in the civil justice system We are skeptical of the efficacy of many proposed and enacted reforms, and we are concerned about the consequences of those measures. Beyond the self-interest of those groups lobbying for reform, we can see little reason for endorsing this reform agenda. We come to this position after spending a number of years collecting and analyzing data on civil jury verdicts from different parts of the country. We and others do not find empirical evidence of a system run amok with skyrocketing awards, and so on. Or, we find little or no empirical information available regarding many of the claims made by the reformers about juries and the civil justice system. 1 Others have expended great effort to track down the stories told by these tort reformers and have found the renderings to be nothing less than substantial distortions calculated to advance political goals. For example, University of Wisconsin law professor, Marc Galanter, has investigated some of the most frequently used examples of supposedly indefensible case results and found, upon review of the actual facts, the cases reached entirely logical ends. 2 The distorted discourse on the civil justice system has also moved beyond such traditional fora for political rhetoric as editorials, opeds, and sympathetic talk-show hosts. It now finds expression in what these groups routinely brandish as scholarship. Politically motivated conservative think tanks such as the Manhattan Institute, 1. STEPHEN DANIELS & JOANNE MARTIN, CIVIL JURIES AND THE POLITICS OF REFORM ix-x (1995). 2. See Marc Galanter, An Oil Strike in Hell: Contemporary Legends About the Civil Justice System, 40 ARIZ. L. REV. 717, (1998) (setting forth stories of lawsuits that were publicized in a misleading manner).
3 2000] TORT REFORM the Hudson Institute, and the Beacon Hill Institute; and polemical writers such as Peter Huber and Walter Olson publish works of dubious scholarship that are passed off as authoritative commentaries on a supposedly out-of-control civil justice system. Unfortunately, these works are often taken at face value by uncritical members of the press, politicians and political groups looking to justify their own preconceived policy objectives, and a public that often has no means to obtain better information. In fact, much of the tort reformers arguments have saturated the public to such an extent that many prospective jurors come to court with the mistaken belief that plaintiffs, who have suffered serious injury as a result of another s negligence, are merely out to enrich themselves at the expense of an unlucky, deep-pocketed corporation. 3 Others have noted this trend as well. According to information culled from court reporters in personal injury suits, juries sided with plaintiffs 52% of the time in 1992, down from 61% in Plaintiffs success in product liability jury trials dropped from 54% in 1987 to 43% in 1992, and in cases concerning consumer products, that success dropped from 55% to 39% in the same time period. 5 Plaintiffs success in medical malpractice cases has not been any better, with plaintiffs prevailing in only 25% of cases against doctors in 1992, down from 42% in The reasons for this drop are clear, according to one expert: Jury specialists say the powerful and deep-pocketed advocates of reform have spread their message so successfully in the media that juries have changed their behavior. The publicity of the business and insurance groups has played a major role in shifting both public and judge opinion, says Theodore Eisenberg, a professor at Cornell Law School. Either there was a liability crisis or people got sold one, and attitudes changed in a way that led to more victories for defendants. 7 Given the overwhelming evidence offered by independent scholars that there was no litigation explosion, it is clear that the people did, in fact, get sold one. 8 More serious scholarship, written primarily by 3. See Valerie P. Hans, The Contested Role of the Civil Jury in Business Litigation, 79 JUDICATURE 242, (Mar.-Apr. 1996) (stating how skeptical jurors often blamed the victim ); see also Edward Felsenthal, Juries Display Less Sympathy in Injury Claims, WALL ST. J., Mar. 21, 1994, at B1; Amy Singer, Selecting Jurors: What to Do About Bias, TRIAL (Apr. 1996) at See Felsenthal, supra note 3, at B1. 5. See id. 6. See id. 7. Id. 8. A study done by a jury consulting firm found that 75% of jurors believe that awards are too large, and two-thirds say there are too many lawsuits. See id. Another study found that when exposed to an insurance company advertisement complaining about large jury awards, mock jurors awarded significantly less pain-and-suffering damages than
4 400 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 disinterested academic observers, has shown how bereft of rigor and validity the tort reformers research truly is. Contrary to the claims that are made, the empirical evidence amply demonstrates that there is no litigation explosion, 9 and juries do not act irrationally or prejudicially against wealthy defendants in awarding damages. 10 In fact, studies demonstrate that awards, all things being equal, are no more or less consistent if the defendant is a health care provider or the negligent driver of an automobile. 11 The bottom line is that the jury verdicts are not influenced by the availability of deep pockets. One would hope that the appearance of systematic scholarship debunking the work of pro-tort reform scholars would put an end to their specious arguments and occasional legislative successes. Unfortunately, that is not the case. Rather than focus on provable facts, the tort reform propaganda is recycled from state to state, and the troublesome reality that reputable scholars have discredited it is either ignored or rationalized. The Florida Legislature also bought the bill of goods being sold by tort reformers and adopted the rhetoric of the majority s political patrons in attempting to justify legislation. When Governor Jeb Bush signed House Bill 775 into law on May 26, 1999, 12 the business community finally achieved its goal of securing the most far-reaching legislative restriction of citizens and consumers rights in more than a decade. This year s victory was the culmination of a three-year legislative battle that had raged in and out of the halls of the legislature and marked the first comprehensive tort reform legislation enacted into law since the Tort Reform and Insurance Act of The enactment was a tribute to raw power, as first the Senate, then the House of Representatives, and finally the Governor s Office changed hands and the new officeholders felt an obligation to reward the those mock jurors who did not see the advertisement. See Elizabeth F. Loftus, Insurance Advertising and Jury Awards, A.B.A. J., Jan. 1979, at See DANIELS & MARTIN, supra note 1, at ; see also Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 U. MD. L. REV. 1093, 1103 (1996) (stating that the number of civil lawsuits per capita that has been filed is lower than at previous times in the nation s history). 10. See Hans, supra note 3, at 248; see also DANIELS & MARTIN, supra note 1, at ; VALERIE HANS & NEIL VIDMAR, JUDGING THE JURY (1986); NEIL VIDMAR, MEDICAL MALPRACTICE AND THE AMERICAN JURY: CONFRONTING THE MYTHS ABOUT JURY INCOMPETENCE, DEEP POCKETS, AND OUTRAGEOUS DAMAGE AWARDS (1995); Michael Rustad, In Defense of Punitive Damages in Products Liability: Testing Tort Anecdotes with Empirical Data, 78 IOWA L. REV. 1, 86 (1992) (explaining why empirical evidence does not support the theory that juries grant larger damage awards against wealthier defendants). 11. Neil Vidmar, Are Juries Competent to Decide Liability in Tort Cases Involving Scientific/Medical Issues? Some Data from Medical Malpractice, 43 EMORY L.J. 885, 908 (1994) (footnote omitted). 12. Fla. HB 775 (1999) (Act effective Oct. 1, 1999, ch , 1999 Fla. Laws 1400). 13. See Act effective July 1, 1986, ch , 1986 Fla. Laws 695.
5 2000] TORT REFORM business community that had so assiduously supported them. The result was that a longstanding business wish list of legal changes was enacted. 14 Unfortunately for the business community, there was absolutely no factual basis to claim that legal relief from liability was necessary. Florida was not experiencing an insurance crisis, a litigation explosion, or a declining economy. In fact, objective data showed just the contrary. 15 Therefore, as part of their public relations plan, the business community adopted the rhetorical device of claiming that legal liability amounted to a tort tax that was exacted upon all Floridians. Specious research from the national tort reform movement was the only empirical evidence presented to the legislature in support of tort reform. In Parts II through III, this Article will briefly examine House Bill 775 and its genesis, and then trace the bill through the legislative process that eventually enacted it as law. It will also look at some of the key provisions of the bill and their effects on tort litigation. Part IV of this Article will place the issue of tort reform in the context of constitutional requirements. Finally, Parts V through VIII will critically review the so-called scholarship used to justify tort reform. It will look at studies used to support the passage of Florida tort reform laws and point out their fallacies. II. THE JOURNEY TO FLORIDA TORT REFORM The efforts of the business community and the legislature that culminated in 1999 took three legislative sessions to bear fruit. In 1997, legislation was considered but not passed. 16 In 1998, legislation was passed, but vetoed. 17 And, in 1999, legislation was passed and signed into law. 18 The provisions of these three sweeping pieces of legislation are compared in detail in the appendix to this Article. Late in the 1997 Legislative Session, the House Committee on Financial Services took up a proposed committee bill that was entitled the Florida Accountability and Individual Responsibility (FAIR) Liability Act. 19 The bill, which included a variety of tort reforms, was taken up and passed out of committee in record time amidst an un- 14. See generally Kenneth D. Kranz, Tort Reform : Profits v. People?, 25 FLA. ST. U. L. REV. 161 (1998) (providing a brief overview of the history behind recent tort reform efforts in Florida). 15. See id. at See Fla. HB 2117 (1997) (proposed amendment to chs. 95, 768, 772 (1997)). 17. See Fla. CS for SB 874 (1998). 18. See Fla. HB 775 (1999) (Act effective Oct. 1, 1999, ch , 1999 Fla. Laws 1400). 19. Fla. H.R. Comm. on Fin. Servs., PCB (1997) (proposed Fla. HB 2117 (1997)).
6 402 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 usually heavy-handed display of legislative strong-arming. 20 Among other things, House Bill 2117 included a statute of repose for product liability cases, the elimination of the owner s vicarious liability for the use of any personal property by someone other than the owner, limitations on punitive damages, and a further restriction on the application of the doctrine of joint and several liability. 21 Under the House Rules in effect at the time, House Bill 2117 was carried over and left pending for consideration during the 1998 Session. 22 In the new session, Senate President Toni Jennings created the Senate Select Committee on Litigation Reform and charged it with the following mission: The... select committee will conduct hearings to assess the manner and extent to which the current civil litigation environment is affecting economic development and job-creation efforts in the state. The select committee will determine what civil litigation reforms would enhance the economic development climate of the state while continuing to preserve the constitutional guarantees citizens have to seek redress through the courts. 23 Both the House Judiciary Committee, previously uninvolved with the issue, and the new Senate committee conducted hearings throughout the fall and winter of During these hearings, Tort Reform United Effort (TRUE), a coalition of business associations and other pro-tort reform interests, unveiled with great fanfare the results of an economic study it had commissioned. 24 The study, which became known as the Fishkind Report, has been criticized by economist Frederick Raffa for making naked and unsubstantiated claims that Florida s tort liability system costs each Floridian $655 per year, 25 that House Bill 2117 would reduce the volume of tort liti- 20. See Kranz, supra note 14, at 169 n.34 (providing a detailed description of the handling of this bill). 21. See Fla. HB 2117, 2, 3, 6-8 (1997). See Appendix for a complete listing of the provisions of this bill. 22. Under Rule 96 of the House Rules, bills were carried over from the first session of a legislative biennium to the next. This rule is no longer in effect. See FLA. H.R. RULE 96 ( ). 23. Press Release from Office of the Fla. S. Pres. Toni Jennings (Aug. 14, 1997) (detailing the mission of, and reasons for creating, the Select Committee on Litigation Reform) (copy on file with authors). 24. See Fishkind & Assocs., Inc., The Economic Impact of Tort Reform in Florida: An Analysis of HB 2117, the Florida Accountability and Individual Responsibility (FAIR) Liability Act 1997, (Oct. 22, 1997) [hereinafter Fishkind Report] (unpublished report, copy on file with authors). See also infra Part V (discussing the Fishkind Report in greater detail). Press release from Tort Reform United Effort, Media Advisory (Oct. 27, 1997) TRUE Coalition Details Economic Impact of Tort Reform in Florida, (providing notice of a press conference to be held the following day) (copy on file with authors). 25. In contrast, economist Frederick Raffa found that the cost of liability insurance per capita in Florida, in 1991, was $156 and $203 in See Frederick A. Raffa, Ph.D., Comments on the Economic Analysis Contained in the Economic Impact Report Prepared
7 2000] TORT REFORM gation in Florida and lower litigation costs, and that House Bill 2117 could reasonably be expected to lower tort costs in Florida by $1 billion. 26 TRUE immediately began trumpeting that abusive lawsuits costs every Floridian $655 annually, 27 an outlandish exaggeration and little more than an advocate s fantasy to support a political agenda. 28 The report s principal author subsequently and implausibly opined that the $1 billion savings per year translates into an increase of over 28,000 jobs, $470,000,000 in income and $1,475,000,000 in total sales. 29 The report became the most important, if not exclusive, source of the notion that the tort reforms under consideration would have a positive impact on Florida s economy. The hearings led to several new bills being filed for the 1998 Session. 30 The House Civil Justice & Claims Committee divided up the various issues and addressed them in separate committee bills. The House bills included House Bill 3871, relating to products liability; House Bill 3873, relating to punitive damages; House Bill 3875, relating to premises liability; House Bill 3879, relating to comparative fault and joint and several liability; and House Bill 3881, relating to a variety of procedural reforms. 31 Once introduced, all of the House bills went straight to the floor and were passed out of the House early in the session. The Chairman of the Senate Select Committee on Litigation Reform, Senator John M. McKay, (Bradenton, Repub.) filed Senate Bill 874, which combined the Select Committee s recommendations into a single bill. 32 Senate Bill 874 was referred directly to the Senate Rules Committee (bypassing the Senate Judiciary Committee), which by Fishkind & Associates, Inc. for Tort Reform United Effort 3 (unpublished report, copy on file with authors). 26. Fishkind Report, supra note Press release from Tort Reform United Effort, (Oct. 28, 1997), TRUE Business Coalition Details Economic Impact of Tort Reform in Florida (outlining findings presented at press conference) (copy on file with authors). 28. There are numerous methodological and other problems with this research, not the least of which is that the report s authors equate tort costs with insurance premiums on a dollar-for-dollar basis and fail to consider any of the numerous benefits of the tort system and other costs that would be incurred without it. See infra Part V (discussing problems with this research). 29. Letter to Senator John McKay from Henry Fishkind (Dec. 10, 1997) (attachment to December 18, 1997, memorandum from Greg Krasovsky, Staff Director of the Senate Select Committee on Litigation Reform to all Select Committee members) (copy on file with authors). 30. Technically, House Bill 2117 was also still before the Legislature. See supra note 22 and accompanying text. However, the Legislature took no action on House Bill 2117 in See Fla. HB 3871 (1998); Fla. HB 3873 (1998); Fla. HB 3875 (1998); Fla. HB 3879 (1998); Fla. HB 3881 (1998). 32. Under the Senate Rules, the Select Committee did not have the authority to file a committee bill. See FLA. S. RULE 2.39 ( ).
8 404 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 adopted a committee substitute for the bill. 33 The full Senate passed Committee Substitute for Senate Bill 874 almost a month after the House had taken up its bills. The subsequent Conference Committee Report on Committee Substitute for Senate Bill 874, like its predecessor, House Bill 2117, addressed joint and several liability, punitive damages, a products liability statute of repose, and vicarious liability (limited, however, to vicarious liability only with regard to the operation of motor vehicles rather than to all types of personal property). 34 It also included a variety of additional substantive and procedural changes to the civil justice system. 35 The recommendations of the conference committee were adopted by both houses; the bill passed the House by a vote of and the Senate by a vote of The bill was promptly vetoed by Governor Chiles, who said: I made it clear to the 1998 Florida Legislature that I could not accept a civil reform bill that gave untoward economic windfalls to big business, that did not provide adequate compensation to innocent victims, and that failed to protect Florida consumers. I urged the Legislature to enact a balanced bill that corrected the problems in our civil justice system, while ensuring that there remain adequate remedies to victims of unlawful harm..... Unfortunately, a deeply divided Legislature sent me a highly controversial and extreme bill that would leave Floridians exposed to potentially harmful products and actions without adequately compensating victims for injuries those products and actions will cause. This bill would make some helpful changes to our civil justice system, but because this bill will do much more harm than good to Floridians, I am compelled to veto Committee Substitute for Senate Bill This bill does not promote a strong economy, but exposes our citizens to risk and injury, and imposes upon our taxpayers unwarranted and unjustified expenses. That is not fair to Floridians. The people of Florida, and visitors to our state, deserve to be protected and compensated in the unfortunate event that they are injured or victimized. This bill would not only erode those protections significantly, but it would shift the costs of the system from wrongdoers to Florida taxpayers. As Governor, I am duty bound to 33. See Fla. CS for SB 874 (1998). 34. See Fla. CS for SB 874 (1998). 35. See Appendix for a detailed listing of all of the provisions of Committee Substitute for Senate Bill 874 (1998).
9 2000] TORT REFORM protect our citizens, and I must ensure that those who commit wrongful acts remain primarily responsible for paying for those wrongful acts. I cannot allow this bill to become the law of this state. 36 Following the November 1998 general elections, the business community knew it would soon be working with a Republican governor 37 who, during the campaign, had declared that he would have signed Committee Substitute for Senate Bill 874 had he been governor in The newly-elected legislature moved quickly to rekindle the tort reform flames. Senate sponsors split up the tort reform issues among four bills for the 1999 Session. Senate Bill 236 (Jack Latvala, Palm Harbor, Repub.) addressed rental motor vehicle vicarious liability and the statute of repose for products liability cases, Senate Bill 374 (John F. Laurent, Bartow, Repub.) addressed procedural issues and included revisions to joint and several liability, and Senate Bill 376 (Tom Lee, Brandon, Repub.) addressed negligent hiring, premises liability, and punitive damages. 39 Workshops and hearings on the bills were conducted by the Senate Judiciary Committee during February and March 1999, and the bills were brought to the floor for a vote during what was only the second week of the 1999 Session. 40 The House rolled everything into one committee bill, House Bill 775, introduced by the House Judiciary Committee. House Bill 775 went to the floor and was approved in the House by a vote of on the same day that the Senate took up its bills. 41 Upon receipt of House Bill 775, the Senate substituted the language of the four Senate bills for the House language and immediately sent it back to the House on March 10, With a stalemate occurring between the two houses, each refusing to accede to the other, the compromise bill emerged from negotiations in conference committee over the next 36. Veto of Fla. CS for SB 874 (1998) (letter from Gov. Chiles to Sec y of State Sandra Mortham, May 18, 1998) (on file with Sec y of State, The Capitol, Tallahassee, Fla.) [hereinafter Chiles]. 37. Republican Jeb Bush was elected to replace the retiring Democratic Governor, Lawton Chiles. Although the newly elected legislators take office upon election in November, the governor is not inaugurated until the following January. See FLA. CONST. art. III, 15(d); FLA. CONST. art. IV, 5(a). 38. See Peter Wallsten, Lawsuit Limits a Campaign Issue, ST. PETE. TIMES, Aug. 22, 1998, at 4B. 39. Taken together, the four bills addressed most of the provisions in Committee Substitute for Senate Bill 874; however, not all of these provisions were identical to those in the enrolled version of Committee Substitute for Senate Bill 874. The bills collectively bore more similarity to the original Committee Substitute for Senate Bill 874, as adopted by the Senate Rules Committee. 40. The bills were taken up on second reading on March 9, 1999 and on third reading on March 10; each bill passed by a vote of It was taken up and amended on March 9, 1999 and passed, as amended, on March 10 (introduced and placed on calendar March 2, 1999).
10 406 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 27:397 three weeks. The new bill differed from both the House and Senate proposals (as well as from the prior year s Committee Substitute for Senate Bill 874) in a number of ways, but retained the major themes of the earlier proposals. 42 On April 30, 1999, after substantial debate, the House adopted the Conference Committee Report and passed the bill, as amended, by a vote of The Senate followed suit shortly thereafter by a vote of Governor Bush signed the bill into law on May 26, III. SIGNIFICANT ISSUES IN HOUSE BILL 775 The enacted law contains the following four core issues that have been key elements of the tort reform movement and are calculated to have the most substantial impact on tort practice: joint and several liability, punitive damages, products liability statute of repose, and motor vehicle vicarious liability. A. Joint and Several Liability Joint and several liability refers to the doctrine under which tortfeasors who are jointly at fault in causing the harm are each potentially held individually liable for total damages caused by all of the joint tortfeasors. 44 Dean John W. Wade has explained that the notion of assigning a percentage share of fault to each of several defendants but holding each 100% liable to the plaintiff was developed for the benefit of defendants. 45 Previously, a plaintiff could sue any tortfeasor who was the proximate cause of the plaintiff s injury and recover fully. It fell to the defendant to bring separate actions against other responsible actors for contribution. Permitting the joinder of multiple wrongdoers and assigning percentages of fault eliminated the burden on defendants of pursuing a multiplicity of actions with potentially inconsistent results. The percentage share did not represent the amount of harm defendant caused, but rather the amount he could be required by other joint tortfeasors to contribute. 46 For example, if a plaintiff visited three doctors, each of whom negligently failed to diagnose the plaintiff s cancer, each could be 100% liable to the plaintiff. To insist that each doctor caused only one-third of the plaintiff s injury, or that the same negligence caused only one-fourth of the harm when yet another doctor was responsible 42. See Appendix for a complete listing of provisions compared to the 1998 and 1997 legislation. 43. See Fla. HB 775 (1999) (Act effective Oct. 1, 1999, ch , 1999 Fla. Laws 1400). 44. See BLACK S LAW DICTIONARY 926 (7th ed. 1999). 45. See John W. Wade, Should Joint and Several Liability of Multiple Tortfeasors Be Abolished?, 10 AM. J. TRIAL ADVOC. 193, (1986). 46. See id.
11 2000] TORT REFORM for misdiagnosis is irrational. It is even more irrational to insist that it is more equitable for the innocent plaintiff, rather than the negligent defendant, to bear the risk of nonrecovery from one or more joint tortfeasors. 47 The misconception of the doctrine of joint and several liability among legislators interfering with the centuries-old common-law concept has generally and directly been attributed by scholars to an intensive, lavishly financed campaign 48 for special-interest legislation... primarily for the benefit of insurance companies. 49 Reform of joint and several liability of the kind enacted in House Bill 775 is merely the result of raw interest group politics with little regard to fairness. 50 The doctrine of joint and several liability has been a part of the common law since early times and was explicitly adopted in Florida by the Florida Supreme Court in When the Florida Supreme Court discarded the harsh doctrine of contributory negligence in favor of comparative negligence in 1973, the court retained the doctrine of joint and several liability. 52 Shortly thereafter, the Florida Supreme Court and the legislature, nearly simultaneously, created a right of contribution the right of one joint tortfeasor who has paid more than his share of a judgment to seek reimbursement from the other joint tortfeasors. 53 The application of the doctrine of joint and several liability was substantially limited by the legislature in 1986 as part of the Tort Reform and Insurance Act of The changes included: 1) abolition of joint and several liability for noneconomic damages; 2) abolition of joint and several liability for economic damages except with respect to a defendant whose fault for the injury equals or exceeds that of the plaintiff; and 3) retention of joint and several liability in cases where the total damages are $25,000 or less, notwithstanding the foregoing. This scheme was further altered by a 1993 Florida Supreme Court decision, which decreed that juries are required to re- 47. See id. at Id. at Id. at Richard W. Wright, Allocating Liability Among Multiple Responsible Causes: A Principled Defense of Joint and Several Liability for Actual Harm and Risk Exposure, 21 U.C. DAVIS L. REV. 1141, 1148 (1988) (arguing joint and several liability is consistent with notions of corrective justice). 51. See Louisville & Nashville R.R. Co. v. Allen, 65 So. 8 (Fla. 1914). 52. See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). 53. See FLA. STAT (1975) (taking effect while the Florida Supreme Court was preparing its decision in Lincenberg v. Issen, 318 So. 2d 386 (Fla. 1975)). 54. See Act effective July 1, 1986, ch , 60, 1986 Fla. Laws 695, 755 (codified at FLA. STAT (3) (1987)).